| Since the emergence of the securities market,various violations have begun to appear simultaneously.It can be said that the securities market has gone hand in hand with various violations of laws and regulations.Among the many violations of laws and regulations,the frequency of insider trading is relatively high,and this behavior violates the principle of“openness,fairness,and justice” of the securities market,causing serious damage to the normal functioning of the securities market and a serious threat to investors.Legal rights.The "Securities Law of the People’s Republic of China" revised on December 28,2019 revised the relevant regulations on insider trading.This article will start from the "Securities Law" revised in 2019,draw on the relevant U.S.securities laws and regulations in the developed securities market,and discuss the three standards for identifying insider trading in securities based on specific cases to interpret the standards for identifying domestic trading activities in my country.Development: There are deficiencies in the three identification aspects of insider trading behavior in our country,which need to be improved.The identification of insider information needs to learn from the two major identification standards of the United States.At the same time,it is necessary to expand the scope of insider subjects and clearly stipulate the details of the form of insider trading behavior,so as to better regulate insider trading behavior.This article will start the discussion through six chapters,namely introduction,overview of insider trading behavior,identification of insider information,identification of insider subject,identification of form of insider trading behavior,and recommendations for identification of insider trading behavior.The first chapter is the introduction.The practical significance of the article is that it can resolve case disputes in judicial practice and regulate insider trading behavior;the article uses normative research methods,empirical research methods and comparative research methods to study the identification of insider trading behavior.The second chapter is an overview of insider trading behavior.my country’s securities law,criminal law,and other regulations have different provisions on the expression of insider trading,but their connotations are basically the same,that is,insider information transactions by people who know the inside information constitute insider trading.The "Securities Act",a statutory law of the United States,does not provide for insider trading,but only provides for the prohibition of fraud.It is the court that gradually adopted precedents to clarify the definition and regulatory framework of insider trading.The number of insider trading activities in my country is showing a steady upward trend,and the strength of my country’s laws regarding the regulation of insider trading activities is also continuously strengthening.The third chapter is the identification of inside information.Both the information equality theory and the fiduciary duty theory were first proposed by the United States to provide a basis for the determination of inside information.The determination of the "significance" of inside information in the United States adopts the "rational investor standard",and the determination of "non-disclosure" adopts the "effective market effect" standard.my country’s securities law adopts a combination of general provisions and enumeration to determine the "significance" of inside information;for the "non-publicity" of inside information,the guidelines and interpretations of the China Securities Regulatory Commission stipulate standards for substantial disclosure and formal disclosure,respectively.However,through analysis of actual cases,it can be seen that my country’s judicial practice is more inclined to the standard of "formal disclosure",while the United States is more inclined to the standard of substantive disclosure in terms of "non-disclosure" characteristics.As the "certainty" of inside information is controversial,this article believes that it is not necessary to use "certainty" as the standard for determining inside information.The fourth chapter is the identification of insider trading subjects.The American fiduciary duty theory divides insider trading entities into three types: traditional insiders,information recipients,and fictitious insiders.This article believes that a fourth type of "information misappropriators" needs to be added to better cover the scope of insiders..The Securities Law revised in 2019 divides insiders into insider information and those who illegally obtain inside information.At the same time,Article 51 expands the scope of insider information.The Securities Law does not provide detailed regulations on persons who illegally obtain inside information,but the Supreme People’s Court and the Supreme People’s Procuratorate issued the "Interpretation on Several Issues Concerning the Specific Application of Law in Criminal Cases of Handling Insider Trading and Leaking Inside Information"(hereinafter referred to as the "Interpretation".)Enumerating provisions for those who illegally obtain inside information.Although the basis for classifying insiders in my country and the United States is different,the scope of coverage is basically the same.The fifth chapter is the research on the identification of insider trading behavior.According to the relevant provisions of Chinese laws,this article believes that insider trading activities can be divided into three categories: "insiders buy and sell securities by themselves","behaviors caused by insiders divulging inside information" and "insiders advise others to buy and sell securities".Whether insiders make profits in the two behaviors of "insiders buying and selling securities on their own" and "insiders recommending others to buy and sell securities" does not affect the establishment of insider trading behavior.Insider trading in the behavior of "trading caused by insider information leaking by insider" People’s subjective mentality can be divided into deliberate disclosure and negligent disclosure,but these two forms do not affect the establishment of insider trading behavior.The sixth chapter is the suggestion on the determination of insider trading behavior.With regard to the identification of inside information,drawing on the "rational investor theory" and "efficient market theory" of the United States can improve the rationality and practicality of the identification of inside information.In terms of the scope of insider personnel,including "media personnel" into the scope of insider personnel can more effectively regulate insider trading.Regarding the form of insider trading behavior,the legal provisions and interpretations of the theoretical disputes in "transactions caused by insider information leaking insider information" and "insiders recommending others to buy and sell securities" will help to clarify the legal basis in specific cases and reduce dispute.This article makes a certain refinement and discussion on the identification of insider trading,and hopes that the conclusions drawn through the analysis of the above three elements will have certain guiding significance and help for the future revision of relevant laws in our country. |
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